HOUSE BILL 450
54th legislature - STATE OF NEW MEXICO - first session, 2019
Paul C. Bandy and Steven P. Neville
RELATING TO WATER; AMENDING SECTIONS OF CHAPTER 72 NMSA 1978; AFFIRMING THE RIGHT TO DE NOVO REVIEW OF STATE ENGINEER-ISSUED ORDERS; PROVIDING FOR EXPEDITED DETERMINATION OF WATER RIGHTS; PROVIDING FOR VENUE IN THE DISTRICT COURT; PROVIDING FOR APPEALS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 72-2-8 NMSA 1978 (being Laws 1967, Chapter 246, Section 1) is amended to read:
"72-2-8. ADMINISTRATIVE REGULATIONS, CODES, INSTRUCTIONS, ORDERS--PRESUMPTION OF CORRECTNESS.--
A. The state engineer may adopt regulations and codes to implement and enforce any provision of any law administered by [him] the state engineer and may issue orders necessary to implement [his] decisions and to aid [him] in the accomplishment of [his] the state engineer's duties. In order to accomplish its purpose, this provision is to be liberally construed to protect the constitutional right of prior appropriation and beneficial use, to protect the constitutional right to de novo review by the district court and to minimize the cost and delay to water rights owners.
B. Directives issued by the state engineer shall be in form substantially as follows:
(1) regulations are written statements of the state engineer of general application to the public, implementing statutes, prescribing procedures and interpreting and exemplifying the statutes to which they relate;
(2) codes are written standards and specifications governing design and construction of dams;
(3) orders are written statements of the state engineer to implement [his decision] the state engineer's decisions; and
(4) special orders are written statements defining the declared boundaries of underground streams, channels, artesian basins, reservoirs or lakes.
C. To be effective, a regulation, code or special order issued by the state engineer shall be reviewed by the attorney general or other legal counsel of the [state engineer's] office of the state engineer prior to being filed as required by law and the fact of [his] the state engineer's review shall be indicated [thereon] on the regulation, code or special order.
D. To be effective, a regulation or code shall first be issued as a proposed regulation or proposed code and filed for public inspection in the office of the state engineer along with the findings of fact that in the opinion of the state engineer justify the regulation or code. Distribution shall also be made to each district and field office for public inspection and to each of the persons [on] in the file of interested persons [hereinafter] mentioned in Subsection G of this section. After the proposed regulation or code has been on file for one month, [he] the state engineer shall publish it or, if it is lengthy, a resume of it in not less than five newspapers of general circulation in the state, once a week for two consecutive weeks, with the statement that there will be a hearing on the proposed regulation or code on a day set in the publication, which hearing shall be not more than thirty days nor less than twenty days after the last publication. The hearing shall be held in [Santa Fe] the district that is most convenient to the persons most affected, and any person who is or may be affected by the proposed regulation or code may appear and testify.
E. Special orders may be promulgated without prior notice and hearing, but the state engineer shall, within ten days of promulgation of a special order, set a date for a hearing on the special order and publish notice of the public hearing in the same manner required [above] in Subsection D of this section.
F. In addition to filing copies of regulations as required by law, the state engineer shall maintain in [his] the office of the state engineer duplicate official sets of current regulations, codes and special orders, which sets shall be available for inspection by the public.
G. The state engineer shall develop and maintain a file of names and addresses of individuals and professional, agricultural and other groups having an interest in the promulgation of new, revised or proposed regulations and shall at convenient times distribute to these persons all such regulations, making such charges [therefor] as will defray the expense incurred in their physical preparation and mailing.
H. Any regulation, code or order issued by the state engineer is presumed to be in proper implementation of the provisions of the water laws administered by [him] the state engineer, but subject, in all cases, to full de novo review by the district court.
I. The state engineer shall state the extent to which regulations, codes and orders will have retroactive effect and, if no such statement is made, they will be applied prospectively only."
SECTION 2. Section 72-2-9.1 NMSA 1978 (being Laws 2003, Chapter 63, Section 1) is amended to read:
"72-2-9.1. PRIORITY ADMINISTRATION--EXPEDITED WATER MARKETING AND LEASING--STATE ENGINEER.--
[A. The legislature recognizes that the adjudication process is slow, the need for water administration is urgent, compliance with interstate compacts is imperative and the state engineer has authority to administer water allocations in accordance with the water right priorities recorded with or declared or otherwise available to the state engineer.
B. The state engineer shall adopt rules for priority administration to ensure that authority is exercised:
(1) so as not to interfere with a future or pending adjudication;
(2) so as to create no impairment of water rights, other than what is required to enforce priorities; and
(3) so as to create no increased depletions.
C.] A. The state engineer shall adopt rules based on the appropriate hydrologic models to promote expedited marketing and leasing of water in those areas affected by priority administration. The rules shall be consistent with the rights, remedies and criteria established by law for proceedings for water use leasing and for changes in point of diversion, place of use and purpose of use of water rights. The rules shall not apply to acequias or community ditches or to water rights served by an acequia or community ditch.
[D.] B. Nothing in this section shall affect the
partial final decree and settlement agreement as may be
entered in the Carlsbad irrigation district project offer
phase of State of New Mexico ex rel. State Engineer v. Lewis,
et al., Nos. 20294 and 22600 (N.M. 5th Jud. Dist.)."
SECTION 3. Section 72-2-16 NMSA 1978 (being Laws 1965, Chapter 285, Section 4, as amended) is amended to read:
"72-2-16. HEARINGS REQUIRED BEFORE APPEAL.--The state engineer may order that a hearing be held before the state engineer enters a decision, acts or refuses to act. If, without holding a hearing, the state engineer enters a decision, acts or refuses to act, any person aggrieved by the decision, act or refusal to act is entitled to a hearing if a request for a hearing is made in writing within thirty days after receipt by certified mail of notice of the decision, act or refusal to act. Hearings shall be held before the state engineer or the state engineer's appointed examiner. Hearings shall be held in the county in which the water right at issue is adjudicated, licensed or permitted, unless the parties and the state engineer stipulate another site for the hearing. A record shall be made of all hearings. [An appeal shall not be taken to the district court until the state engineer has held a hearing and entered a decision in the hearing.]"
SECTION 4. Section 72-2-18 NMSA 1978 (being Laws 2001, Chapter 143, Section 1, as amended) is amended to read:
"72-2-18. STATE ENGINEER--ENFORCEMENT--COMPLIANCE
A. When a person, pursuant to a finding of fact, violates a requirement or prohibition of Chapter 72 NMSA 1978, a regulation, code, order or special order adopted by the state engineer pursuant to Section 72-2-8 NMSA 1978, a condition of a permit or license issued by the state engineer pursuant to law or an order entered by a court adjudicating a water right, the state engineer may, in addition to any other remedies available under law, issue a compliance order stating with reasonable specificity the nature of the violation and requiring compliance within a specified time period. A compliance order shall not be effective against any party other than the person against whom the compliance order is issued.
B. This section shall not be construed to affect or interfere with any jurisdiction of an irrigation district, conservancy district, a state court, a federal court or an Indian nation, tribe or pueblo to enforce its orders and decrees pertaining to water rights.
C. A compliance order may include an order to cease the violation of a requirement or prohibition of Chapter 72 NMSA 1978, a directive issued in accordance with the provisions of Section 72-2-8 NMSA 1978, a condition of a permit or license issued by the state engineer or an order entered by a court adjudicating a water right.
D. The state engineer shall provide an opportunity for the person named in the compliance order to have a hearing on the alleged violation pursuant to Section 72-2-16 NMSA 1978. A hearing shall be held if a written request is made to the state engineer within thirty days after receipt of the notice of the compliance order sent by certified mail. A compliance order issued pursuant to this section shall become final unless the person named in the order submits a written request for a hearing to the state engineer within thirty days of receipt of the order. A compliance order shall be enforceable only upon becoming final. Nothing in this section shall prohibit the person named in the order from pursuing an informal resolution of the matter after a timely request for hearing has been made.
E. A compliance order may require repayment of water that was overdiverted or illegally diverted. [Repayment of water may be up to double the amount of the overdiversion or illegal diversion. In determining the repayment of water beyond the amount overdiverted or illegally diverted, the state engineer shall take into consideration the seriousness of the violation, any good faith efforts to comply with the applicable requirements and any other relevant factors.] Any requirement to repay water shall not be enforceable until the compliance order becomes final. Installation of a measuring device may be required prior to any future diversion of water.
F. Any appeal to district court shall be conducted pursuant to Chapter 72, Article 7 NMSA 1978 and shall not stay enforcement of the compliance order unless ordered by the district court.
G. After a compliance order becomes final, the [state engineer] district court may assess a civil penalty of up to one hundred dollars ($100) per day for violation of the compliance order. Any civil penalty assessed shall accrue from the date of assessment of the penalty.
H. If a person does not comply with a compliance order, the state engineer may file a civil action to enforce the compliance order and receive any of the remedies provided in this section, including injunctive relief."
SECTION 5. Section 72-7-1 NMSA 1978 (being Laws 1907, Chapter 49, Section 63, as amended) is amended to read:
"72-7-1. APPEAL TO DISTRICT COURT--PROCEDURE.--
A. Any applicant or other party dissatisfied with any decision, act or refusal to act of the state engineer may appeal to the district court of the county in which the work or point of desired appropriation is situated. If the state engineer has not issued a final decision on any matter that has been pending before the office of the state engineer for one year or longer, the applicant at any time may elect to treat the absence of a final decision as a refusal to act by filing written notice with the state engineer. The applicant shall have one year from the filing of the notice to file an appeal in the district court. To facilitate possible settlement, the applicant and the state engineer may extend the time for appeal up to one additional year by filing a written agreement with the state engineer.
B. Appeals to the district court shall be taken by serving a notice of appeal upon the state engineer and all parties interested within thirty days after receipt by certified mail of notice of the decision, act or refusal to act. If an appeal is not timely taken, the action of the state engineer is conclusive against the applicant or other party.
C. The notice of appeal may be served in the same manner as a summons in civil actions brought before the district court or by publication [is] in some newspaper printed in the county or water district in which the work or point of desired appropriation is situated, once a week for four consecutive weeks. The last publication shall be at least twenty days prior to the date the appeal may be heard. Proof of service of the notice of appeal shall be made in the same manner as in actions brought in the district court and shall be filed in the district court within thirty days after service is complete. At the time of filing the proof of service and upon payment by the appellant of the civil docket fee, the clerk of the district court shall docket the appeal.
D. Costs shall be taxed in the same manner as in cases brought in the district court [and bond for costs may be required upon proper application].
E. The proceeding upon appeal shall be de novo as cases originally docketed in the district court. Evidence taken in a hearing before the state engineer may be considered as original evidence subject to legal objection, the same as if the evidence was originally offered in the district court. The court shall allow all amendments [which may be necessary in furtherance of justice] and additional evidence and arguments that the parties may offer and may submit any question of fact arising therein to a jury [or to one or more referees] at its discretion. The district court shall also consider all matters within its original jurisdiction under Article 6 of the constitution of New Mexico.
F. The rights, remedies and procedures set forth in this section are not exclusive and shall not preclude the exercise of any other rights, remedies and procedures that may be available to an applicant or other party or the state engineer. Exhaustion of administrative remedies shall not be required when the pursuit of administrative remedies is futile, or when the state engineer lacks authority to grant the right sought by the applicant.
G. Appeals from the district court may be pursued in the manner as other civil appeals. Appellants shall not be required to apply for a writ of certiorari from the court of appeals or any other writ."
- 12 -